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What could happen to your jury notice under rules of simplified procedure during COVID

March 18, 2021   by David Gambrill

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If an insurer consents to defend a client’s auto liability claim under an Ontario court’s rules of simplified procedure, then that client could lose their option for a jury trial — especially when the pandemic causes delays in forming a jury.

The Ontario Superior Court of Justice recently struck a jury notice requested by the insurer, Intact Insurance, in Lightfoot v. Hodgins et. al., released Monday.

Basically, the court confirmed that to maintain the right to a jury, you have to put the claim through the ordinary rules of civil procedure. Under the court’s simplified procedure, you can’t assert your right to a jury trial.

“In light of the admissions by the parties in this case, and the current challenges with the justice system more broadly as a result of the pandemic, I find that it would be contrary to the interests of justice and the principles of proportionality to require that this action continue to a three-week jury trial in ordinary procedure rather than a five-day, non-jury summary trial under Rule 76 [Ontario’s rule for simplified procedure],” the Ontario court ruled.

The claim arose out of a motor vehicle accident that took place on Apr. 18, 2015, involving the plaintiff, Owen Lightfoot, and a vehicle owned by Gary Hodgins and driven by Judy Hodgins. Lightfoot sued the Hodgins, defended by their auto insurer, Intact Insurance, for personal injuries he sustained as a result of the accident. The court has not made any decision about the facts of the case, and fault has not been determined.

Initially, a three-week trial was set for a judge and a jury to hear the case in Belleville, Ont., on May 10, 2021, under the ordinary court procedure.

But Lightfoot told the court that the extent of his damages was unknown when he first started his claim under the ordinary procedure.  Since that time, he said, his medical condition has stabilized and he received expert opinions that changed his understanding of his injuries.

In Ontario, Rule 76 — the rule for simplified court procedures — changed on Jan. 1, 2021, doubling the amounts covered under the simplified rules from $100,000 to $200,000. Lightfoot asked the court to proceed by way of simplified rules, agreeing to knock down the amount of his original claim from $750,000 to $200,000.

The defendants and their insurer, Intact, consented to using the simplified rules, although they wished to maintain the right to have a trial by jury under the simplified rules.

The Ontario Superior Court struck the defendants’ jury notice.

“The relevant portion of the transition provision [i.e. from ordinary rules to simplified rules] in this case is the reference to Rule 76.02.1, which provides that actions proceeding under [the simplified rules] shall not be tried with a jury,” the court found. “To be clear, the transition provision creates an exception to this rule for actions wherein a jury notice was served prior to Jan. 1, 2020 [when the simplified rules changed].”

The defendants in this matter served their jury notice in April 2017, well before the Jan. 1, 2021 cutoff for disallowing jury trials under simplified rules. And so what to do with their jury notice?

In this particular case, the speed of administering justice trumped the right to a jury trial under simplified rules, the court found.

“I find the most compelling factor in this case to be the admission by both parties that this action is well suited for the simplified procedure, including the summary trial process, in the amended Rule 76,” Ontario Superior Court Justice Kristin Muszynski ruled. “The evidence before the court on this motion confirms that the parties have considered the quantum of the claim for damages as well as the efficiencies that could be gained by proceeding in this fashion over ordinary procedure.”

Justice Muszynski thereby found it unnecessary to deal with the question about any potential delay in the court’s ability to host a jury trial due to the pandemic, although the impact of the pandemic on jury trials is mentioned extensively in the decision.

“While the latest notice from the Chief Justice has made it clear that no jury trials can be held in Ontario before May 3, 2021, it is not entirely clear what will happen after that time,” Muszynski wrote. “The trial in this action is currently scheduled to commence on May 10, 2021.

“I do note that the Belleville courthouse is able to accommodate jury trials in a manner that is consistent with public health protocols and the County of Hastings has been relatively fortunate in having low numbers of reported COVID-19 cases within the jurisdiction. The potential delay in proceeding to trial with a jury due to the COVID-19 pandemic is not the driving force behind my decision to strike the defendants’ jury notice.”


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